Powerful lesson in current federal and Supreme Court dynamics and how vulnerable we are to perversions and nefarious actions that seek to undermine 250 years of our liberal democratic experiment. “We the people” are still the first words…
Ignoring the Constitution inverts the question of who is the insurrectionist. When the Supreme Court fails to follow the law, it forces lower courts to decide between upholding the law or obeying the Supreme Court. The lower courts need to refuse to follow the Supreme Court when it breaks the law, yet under the law, they are pledged to honor higher courts, so that would be an untenable violation of constitutional governence... or would it? Should this nation follow the law, or a corrupt Supreme Court? That is the horror to which the Supreme Court has brought us in demanding for the lower courts to follow what is clearly not the law.
The solution is not complicated, but it is dangerous and might ignite a civil war. Coney-Barret allowed herself to be played politically when she accepted a rushed installation onto the Court contravening the already flawed doctrine that Mitch McConnell crafted to block Merrick Garland's appointment, and so must be impeached and removed. Goresuch allowed himself to be played politically when he accepted his seat while McConnell was preventing Garland for being considered for the Senate's required advice and consent (or lack of consent, which would have been the Senate's call, although Garland was clearly qualified). A majority of the remaining (In)justices similarly deserve to be removed through proper constitutional process. Life appointment does not require the country to tolerate rogue Justices. They can be impeached and removed.
There is nothing radical about this. It's constitutional thought, but with the Republican party captured by senators and representatives who want to see the government destroyed, it will not happen.
So much for my free and protected speech. Will I rot in an El Salvadorian jail for that? I should not. I'm the great liberal tradition which best protects us all, let those who might prove these arguments wrong have their say!
I would put the SCOTUS behavior more bluntly: the majority despises the “secular left” and makes rulings to facilitate its destruction, Constitution be damned.
If they could be put under a truth spell, I think they would say that the problem they are working to correct is that Madison, Franklin, Jefferson, and even Hamilton were a bunch of misguided leftists.
The federal courts are the only part of the government still functioning properly. The magas thought corrupting the supreme court would be enough cause they can appeal and get them to overturn anything, but they can't make the judges rule in their favor. Imagine sitting on the bench for decades upholding the law and then having to listen to their insane justifications for their illegal behavior. These rebukes get more forceful by the day as its the only real option they have left.
“Such conduct of course violates his sacred oath to faithfully execute the office of President of the United States, and to the best of his ability preserve, protect and defend the Constitution of the United States.”
It’s notable that Trump didn’t properly swear an oath to the constitution for his second term because he deliberately didn’t place his hand on the Bible while he said the oath. That was a sign of his intention to betray the constitution.
I've been reading Steven Teles' The Rise of the Conservative Legal Movement where he has interviewed many of those involved in turning law schools in a "conservative" direction and founding the Federalist Society, revealing their thinking. I kept the marginalia going as I read this: fiefdom = plantation, divine right = master's right, James I = John C. Calhoun; then you went right ahead and said it: ante-bellum. Substitutions all around: serfs = slaves, king = slave owner, principle of natural order of men = principle of natural order of races, right of first night = rape. Works for me and I'm glad someone of your erudition sees some of the roots of this where I've found them.
Throughout our history the Supreme Court could justifiably be described as “ conservative.” The times when it broke out of that mold were noteworthy, most recently grinning in the mid 1950’s and continuing throughout the 60’s and 70’s of the Warren Court. It started to moderate from Reagan’s time in office in the 1980’s as more justices were appointed by Republican presidents. Recalk, for example, that the SC fought FDR to the point where he threatened to “ pack the Court” and the same Court upheld the detaining of Japanese citizens and residents living on the West Coast during WWII. In some ways, this Court has returned to its previous MO. The shock of course has been that during the second half of the 20th century the country truly experienced a liberation of rights that had long been denied to many groups, including 50% of the population who were women. Biden pushed back against the idea of expanding the court, placing term limits on its members, and setting up a true system of accountability ( one feature would be requiring Justices to recuse themselves if there was a conflict of interest). It’s way past the time to enact these changes, and if Democrats should regain the levers of power, this should be one of the first orders of business to accomplish.
Second: the consolidation of the unitary executive and insulation from oversight arguably goes back at least to Reagan's inversion of the meaning of "city on a hill", discussed somewhere in here: https://bsky.app/profile/rahaeli.bsky.social/post/3loqsfhswjk2r
Briefly, when originally used when Winthrop and later JFK (calling back to Winthrop), it meant, more or less, "everyone can see you and is watching and if you mess up, everyone will know and will judge you for it". When Reagan used it, he meant, "we're already perfect and can't possibly do anything wrong". That's in essence the inversion seen with the federal executive in the United States.
(I've seen a pithy description of the divine right of kings as being "you're God's specialest little child and can do no wrong" while the mandate of heaven is "rule wisely and well or God will send hit squads after you". The US executive was meant to have the mandate of heaven; it's arrogated to itself the divine right of kings.)
Third: Here's a project by a professor emeritus at Mount Holyoke College arguing that many of the issues facing American democracy today stem from aspects of it which even those bemoaning democratic decline celebrate: https://secondratedemocracy.com/the-seventeen-issues-introduction/
This is an incredible tribute to the amazing foundational legacy Judge William Young and Retired Supreme Court Justice Breyer continue. This is how Democracy works and our Constitution is safeguarded for our grandchildren and generations to come!
Thanks for the extensive crafting of so many current shortcomings of recent months, what's missing, what's needed and these inspiring examples you've cited. Great stuff!
Thanks for exposing what I consider to be the “Treachery” of the white ruling classes that set this dictatorship up, using the Supreme Court as their instrument enabling this tyranny!
Just the title 'Shadow Docket' lends itself to something shady. In not explaining their reasoning to other judges or the American people they give the impression that they either feel that they omnipotent gods who are above the law themselves, or that they are just in the pocket of a wannabe dictator. Either option is a disgrace and not what this country was founded on. The open corruption displayed by some of the 'conservative' judges on the Supreme Court mirrors the same on display in the White House. If this isn't stopped the whole Country will dissolve in rot.
Mike, what a brilliant, galvanizing essay. I am grateful to resistance hero Steve Schmidt for introducing me to your work. The collaboration of this court with Trump‘s authoritarian takeover will go down in infamy. Here is what I want to understand. What is their goal? It can’t just be a fetishistic devotion to their grotesque theory. Isn’t it clear that they espouse the unitary executive theory only for Republican presidents ? Is it to impose white Christian nationalism on the rest of us? Has it not occurred to these corrupt judges that a Democratic president may get elected, despite the Right’s best efforts to suppress our vote, and access all the authoritarian power and monarchical impunity they have transferred to Trump, in violation of the plain text of the constitution, without so much as the decency of giving the American people an argument or explanation?? They are acting like this administration is the start of 1000 year reich.
I would refer you to a recent interview on legal AF with Judge Luttig, another hero of mine. I wish to God he had been appointed Chief Justice in John Robertson’s place.
I would say the court operations under both of your models. Number one for Republican presidents and number two for Democrat. They blatantly apply the same theory in opposite ways depending on who is in charge.
Society is no longer open or free when the judiciary stops being independent
They are EXTREME.
Powerful lesson in current federal and Supreme Court dynamics and how vulnerable we are to perversions and nefarious actions that seek to undermine 250 years of our liberal democratic experiment. “We the people” are still the first words…
Ignoring the Constitution inverts the question of who is the insurrectionist. When the Supreme Court fails to follow the law, it forces lower courts to decide between upholding the law or obeying the Supreme Court. The lower courts need to refuse to follow the Supreme Court when it breaks the law, yet under the law, they are pledged to honor higher courts, so that would be an untenable violation of constitutional governence... or would it? Should this nation follow the law, or a corrupt Supreme Court? That is the horror to which the Supreme Court has brought us in demanding for the lower courts to follow what is clearly not the law.
The solution is not complicated, but it is dangerous and might ignite a civil war. Coney-Barret allowed herself to be played politically when she accepted a rushed installation onto the Court contravening the already flawed doctrine that Mitch McConnell crafted to block Merrick Garland's appointment, and so must be impeached and removed. Goresuch allowed himself to be played politically when he accepted his seat while McConnell was preventing Garland for being considered for the Senate's required advice and consent (or lack of consent, which would have been the Senate's call, although Garland was clearly qualified). A majority of the remaining (In)justices similarly deserve to be removed through proper constitutional process. Life appointment does not require the country to tolerate rogue Justices. They can be impeached and removed.
There is nothing radical about this. It's constitutional thought, but with the Republican party captured by senators and representatives who want to see the government destroyed, it will not happen.
So much for my free and protected speech. Will I rot in an El Salvadorian jail for that? I should not. I'm the great liberal tradition which best protects us all, let those who might prove these arguments wrong have their say!
I would put the SCOTUS behavior more bluntly: the majority despises the “secular left” and makes rulings to facilitate its destruction, Constitution be damned.
If they could be put under a truth spell, I think they would say that the problem they are working to correct is that Madison, Franklin, Jefferson, and even Hamilton were a bunch of misguided leftists.
The federal courts are the only part of the government still functioning properly. The magas thought corrupting the supreme court would be enough cause they can appeal and get them to overturn anything, but they can't make the judges rule in their favor. Imagine sitting on the bench for decades upholding the law and then having to listen to their insane justifications for their illegal behavior. These rebukes get more forceful by the day as its the only real option they have left.
“Such conduct of course violates his sacred oath to faithfully execute the office of President of the United States, and to the best of his ability preserve, protect and defend the Constitution of the United States.”
It’s notable that Trump didn’t properly swear an oath to the constitution for his second term because he deliberately didn’t place his hand on the Bible while he said the oath. That was a sign of his intention to betray the constitution.
I've been reading Steven Teles' The Rise of the Conservative Legal Movement where he has interviewed many of those involved in turning law schools in a "conservative" direction and founding the Federalist Society, revealing their thinking. I kept the marginalia going as I read this: fiefdom = plantation, divine right = master's right, James I = John C. Calhoun; then you went right ahead and said it: ante-bellum. Substitutions all around: serfs = slaves, king = slave owner, principle of natural order of men = principle of natural order of races, right of first night = rape. Works for me and I'm glad someone of your erudition sees some of the roots of this where I've found them.
Throughout our history the Supreme Court could justifiably be described as “ conservative.” The times when it broke out of that mold were noteworthy, most recently grinning in the mid 1950’s and continuing throughout the 60’s and 70’s of the Warren Court. It started to moderate from Reagan’s time in office in the 1980’s as more justices were appointed by Republican presidents. Recalk, for example, that the SC fought FDR to the point where he threatened to “ pack the Court” and the same Court upheld the detaining of Japanese citizens and residents living on the West Coast during WWII. In some ways, this Court has returned to its previous MO. The shock of course has been that during the second half of the 20th century the country truly experienced a liberation of rights that had long been denied to many groups, including 50% of the population who were women. Biden pushed back against the idea of expanding the court, placing term limits on its members, and setting up a true system of accountability ( one feature would be requiring Justices to recuse themselves if there was a conflict of interest). It’s way past the time to enact these changes, and if Democrats should regain the levers of power, this should be one of the first orders of business to accomplish.
First comment: I wonder what, if any, effect the possible breakup of Opus Dei will have on the conservative legal movement in the United States: https://bsky.app/profile/rahaeli.bsky.social/post/3m3eovdxmwk2z
Second: the consolidation of the unitary executive and insulation from oversight arguably goes back at least to Reagan's inversion of the meaning of "city on a hill", discussed somewhere in here: https://bsky.app/profile/rahaeli.bsky.social/post/3loqsfhswjk2r
Briefly, when originally used when Winthrop and later JFK (calling back to Winthrop), it meant, more or less, "everyone can see you and is watching and if you mess up, everyone will know and will judge you for it". When Reagan used it, he meant, "we're already perfect and can't possibly do anything wrong". That's in essence the inversion seen with the federal executive in the United States.
(I've seen a pithy description of the divine right of kings as being "you're God's specialest little child and can do no wrong" while the mandate of heaven is "rule wisely and well or God will send hit squads after you". The US executive was meant to have the mandate of heaven; it's arrogated to itself the divine right of kings.)
Third: Here's a project by a professor emeritus at Mount Holyoke College arguing that many of the issues facing American democracy today stem from aspects of it which even those bemoaning democratic decline celebrate: https://secondratedemocracy.com/the-seventeen-issues-introduction/
This is an incredible tribute to the amazing foundational legacy Judge William Young and Retired Supreme Court Justice Breyer continue. This is how Democracy works and our Constitution is safeguarded for our grandchildren and generations to come!
Thanks for the extensive crafting of so many current shortcomings of recent months, what's missing, what's needed and these inspiring examples you've cited. Great stuff!
Thanks for exposing what I consider to be the “Treachery” of the white ruling classes that set this dictatorship up, using the Supreme Court as their instrument enabling this tyranny!
Excellent writing. Even better thinking. Thank you.
Just the title 'Shadow Docket' lends itself to something shady. In not explaining their reasoning to other judges or the American people they give the impression that they either feel that they omnipotent gods who are above the law themselves, or that they are just in the pocket of a wannabe dictator. Either option is a disgrace and not what this country was founded on. The open corruption displayed by some of the 'conservative' judges on the Supreme Court mirrors the same on display in the White House. If this isn't stopped the whole Country will dissolve in rot.
Thank you. Excellent essay. What can an old fart in his seventies do? Ideas?
Mike, what a brilliant, galvanizing essay. I am grateful to resistance hero Steve Schmidt for introducing me to your work. The collaboration of this court with Trump‘s authoritarian takeover will go down in infamy. Here is what I want to understand. What is their goal? It can’t just be a fetishistic devotion to their grotesque theory. Isn’t it clear that they espouse the unitary executive theory only for Republican presidents ? Is it to impose white Christian nationalism on the rest of us? Has it not occurred to these corrupt judges that a Democratic president may get elected, despite the Right’s best efforts to suppress our vote, and access all the authoritarian power and monarchical impunity they have transferred to Trump, in violation of the plain text of the constitution, without so much as the decency of giving the American people an argument or explanation?? They are acting like this administration is the start of 1000 year reich.
I would refer you to a recent interview on legal AF with Judge Luttig, another hero of mine. I wish to God he had been appointed Chief Justice in John Robertson’s place.
It’s “Devine Right” where greed is God.
I would say the court operations under both of your models. Number one for Republican presidents and number two for Democrat. They blatantly apply the same theory in opposite ways depending on who is in charge.